(Cite as: 158 Wis.2d 353,  462 N.W.2d 551,  1990 WL 174568 (Wis.App.))


(The decision of the Court is referenced in the North Western Reporter in a table captioned "Wisconsin Court of Appeals Table of Unpublished Opinions".)


Court of Appeals of Wisconsin.

In the Interest of J.J., T.D. R.D. and S.D., Children Under the Age of 18:



R.D. and D.D., Respondents.

No. 90-0158.

Sept. 18, 1990.

Appeal from a judgment and an order of the circuit court for Brown county:   Richard J. Dietz, Judge.

Circuit Court, Brown County.


CANE, Presiding Judge.

***1 Brown County appeals a judgment and order dismissing a petition for involuntary termination of the parental rights of R.D. and D.D.   The Oneida Tribe intervenes on behalf of its enrolled member, the father, R.D., and on behalf of the four children who are subjects of the termination proceedings, all of whom are either enrolled in the Oneida Tribe or eligible for enrollment.

The county contends that the trial court erred by ruling that it failed to meet its burden of establishing grounds for termination and by permitting a collateral attack on the CHIPS disposition order during the termination proceedings.   This court rejects the county's arguments and affirms the decision and order of the trial court.

The four children who are subjects of this action were found to be in need of protection and services, and the trial court entered a CHIPS dispositional order pursuant to sec. 48.345, Stats., imposing a variety of requirements upon R.D. and D.D.   Both parents were informed that if they refused, neglected or were unable to meet these conditions, and, as a result, the children remained outside their home for a period of a year or more, their parental rights could be terminated.   The order required attendance at a parenting class, establishment and maintenance of a suitable residence, meetings with a social worker and psychologist or psychiatrist, as well as participation in an established program of visitation.

The county later filed a petition for termination of parental rights.   At a hearing on the petition, social workers testified that the parents did not cooperate with social workers, nor did they attend any parenting classes.  They also testified that the couple missed three out of five appointments scheduled with the psychiatrist who performed court-ordered evaluations.  After the filing of the petition, the parents did enroll in a parenting program, but only attended three out of the ten sessions offered.   One-third of the scheduled meets with in-home therapists were also cancelled.   The two in-home therapists filed a report that described R.D. in the following terms:  "[R.D.]'s parenting looks almost apathetic.   He seems to feel uncomfortable with the children and what to do with them.  [R.D.] appears so dependent, it's difficult to see him in a powerful role at all."

The report of the court-appointed psychologist expressed concern about R.D.'s following responses in the Adult Sentence Completion Blank test, administered as part of his evaluation:

I feel nothing about nothing.

My greatest fear is being in this place.

Other people--too many people bother me--I don't like crowds.

I think my mind is a lot different from other people.

I wish I could live off the land--hunt, fish, sportsman, if I could live in the woods, I would.

Another evaluation by a psychiatrist and a psychologist contained the following narrative:

If we had not later been given reports indicating the quality of the house, the difficulties they had in meeting their appointments and the problems that people had observed in recent years about the children, I think we would have been impressed with the rather benign, pleasant and soft-spoken qualities in these parents.   However, it was very obvious that the benign approach they took to most events in their lives and especially these extraordinary events that are now occurring, in itself was marked evidence of difficulty.   We, too, observed the blandness that others had described in talking of these people. Their denial and minimalization of the seriousness of the situation and indeed their own deficiencies continued to be a very significant symptom present in our evaluation of them as well.

***2 The director of the Oneida Tribe's Family and Counseling Services also testified at the hearing.   His department had not been actively involved in the evaluation or treatment of R.D. or D.D.   He informed the court of the historical practice of sending Indian children to boarding schools and the impact it had on the ability of some Indian families to parent their children. He also discussed many Indians' distrust of social workers and other authority figures.   His testimony included reference to the fatalistic attitude exhibited by some Indians when confronted with attempts to remove their children from the family home.

The trial court found that the county had failed to meet its burden of establishing grounds for termination of parental rights because it had made no showing of any active efforts to provide remedial services or rehabilitative programs designed to prevent the breakup of the Indian family.   It therefore ordered that the county's petition be dismissed.

Findings of fact by a trial court shall not be set aside on appeal unless clearly erroneous.  Section 805.17(2), Stats.   The trial court's finding that the county had presented no evidence of efforts consistent with the requirements of the Indian Child Welfare Act (ICWA), codified at 25 U.S.C.A. 1901 et seq. (1963), is not clearly erroneous.

The county concedes that because R.D. is a member of the Oneida Tribe, the provisions of the ICWA apply.   Section 1912(d) (1963) of the ICWA provides:

Remedial services and rehabilitative programs;  preventive measures

Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.  (emphasis added).

Section 48.415, Stats., lists the grounds for involuntary termination of parental rights in Wisconsin.   Subsection (2) of that statute provides:

Continuing need of protection or services may be established by a showing of all of the following:

(a) That the child has been adjudged to be in need of protection or services and placed, or continued in a placement, outside his or her home pursuant to one or more court orders....

 * * *

(b) That the agency responsible for the care of the child and the family has made a diligent effort to provide the services ordered by the court.

(c) That the child has been outside the home for a cumulative total period of one year or longer pursuant to such orders, the parent has substantially neglected, wilfully refused or been unable to meet the conditions established for the return of the child to the home and there is a substantial likelihood that the parent will not meet these conditions in the future.

Section 48.355(1), Stats., further provides that the court order referenced in sec. 48.415(2)(b) above must conform to the requirement that "[w]herever possible the family unit shall be preserved."

***3 The county argues that these two statutory sections, read together, provide the same protections as the ICWA.   The county contends that when the trial court found that it did "not find fault with the intensity of the efforts of the Brown County Department of Social Services to provide counseling, programs and other services designed to result in the reunification of the [D] family," that it necessarily found that active efforts were made to prevent the breakup of the Indian family, as required under the ICWA.   This court does not agree.

Congress, in passing the ICWA, clearly contemplated that the requirements of that Act would provide greater protection to the Indian family than that generally afforded under state statutes.   Congress found that "the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families."  25 U.S.C.A. sec. 1901(5) (1983).

The trial court here did not find that the county was required to provide  "Indian specific" services as the county contends.   Instead, it found that:

The failure of proof in this case arises from the fact that there is no testimony in the record upon which this Court can make a finding that services typically offered to families, irregardless of nationality, cultural background or other similar considerations are sufficient to meet the needs of Indian families who are given a unique status under the federal law as a result of their culture, heritage and status as tribal members.   Possibly services provided to Indian families would not vary substantially from those services offered to any family.   However that fact has not been established to the satisfaction of this Court sitting as the trier of fact.

Additionally, I am satisfied from the testimony that any deficiency on the part of the Department of Social Services arises not so much out of the types of services offered, but rather out of a failure to recognize that apparent unwillingness or inability to comply with the conditions ordered by the Court on the part of the parents, and specifically on the part of [R.D.], the Indian father, may have been the result of longstanding and ingrained cultural influences.  (emphasis added).

This court concludes that the evidence in the record supports the trial court's findings that the county made no active efforts, as required under the ICWA, to provide services with a view toward avoiding the breakup of the Indian family.   Such services, as the trial court indicated, must at a minimum demonstrate the sensitivity of court-appointed experts toward Indian culture and traditions that would affect the behavior of the parents being evaluated.

The county next contends that the trial court erred by permitting a collateral attack on the CHIPS disposition order during the termination proceedings.   The county argues that when the court specified certain services in its CHIPS disposition order, those services were provided, and that the appropriateness or inappropriateness of the services ordered for this particular family are not at issue at this stage of the proceeding.   This court is not convinced that the trial court's findings here were made in response to a collateral attack on the CHIPS proceeding is statutory.   The trial court is required to inquire whether evidence that the county made its best efforts under all applicable law to extend the services specified in the CHIPS disposition order.   Even were this contention true, a collateral attack of a CHIPS dispositional order in a termination of parental rights proceeding does not offend principles of finality of judgment.  In re T.M.S., 152 Wis.2d 345, 356-57, 448 N.W.2d 282, 286-87 (Ct.App.1989).

***4 This court rejects the county's contentions and affirms the decision and order of the trial court.

By the Court.--Judgment and order affirmed.

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